CRP NPD/229/2004 of M/S.VIVIDH HI-FAB, Vs M/S.GEA ENERGY SYSTEMS INDIA on 26 December 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.12.2007

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

C.R.P.(NPD).No.229 of 2004 andC.M.P.No.1974 of 2004

M/s.Vividh Hi-Fabrep. By its Partner987/10/C, C.I.D.C.,Makarpura, Vadodara, Gujarat

... Petitioner

Vs.

M/s.Gen Energy Systems-India Limited443, Anna Salai, Chennai-600 018.... Respondent Prayer: Petition filed under Section 115 of the Code of CivilProcedure, against the judgment and decree dated 11.11.2003 made inE.A.No.4714 of 2003 in E.P.No.757 of 2003 in O.S.No.582 of 2002 onthe file of the IX Asst. City Civil Court, Chennai.

For Petitioner: Mr.G.ThangapandianFor Respondent: Mr.G.SundaramO R D E R

The civil revision petitioner/Decree Holder is the plaintiff inthe suit O.S.No.582 of 2002 on the file of Civil Judge (Sr.Div.),Vadodara. The respondent is the defendant/judgment debtor in thesuit who has filed E.A.No.4714 of 2003 in E.P.No.757 of 2003 inO.S.No.582 of 2002 on the file of learned IX Assistant Judge, CityCivil Court, Chennai.

2. The civil revision petitioner/Decree Holder/ respondent hasobtained a decree on 31.12.2002 on the file of 3[rd] Jt. Civil Judge(Sr.Div.), Vadodara against the Judgment Debtor/respondent who filedE.A.No.4714 of 2003. The decree in O.S.No.582 of 2002 wastransmitted to City Civil Court, Chennai for its execution.

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3. The respondent/Judgment Debtor has preferred E.A.No.4714 of2003 in E.P.No.757 of 2003 in O.S.No.582 of 2002 on the file oflearned IX Assistant Judge, City Civil Court, Chennai under Section47 and 151 of Civil Procedure Code praying to declare that thedecree passed on 31.12.2002 in Summary Special Suit No.582 of 2002issued by the Jt. Civil Judge, Vadodara is null and void and isincapable execution.

4. Inthecounterfiledbythecivilrevisionpetitioner/respondent/plaintiff/decree holder, it is inter-aliamentioned that the respondent/applicant/defendant /Judgment Debtorhas not taken any steps to set aside the Decree passed on 31.12.2002by the trial Court and that the Decree has been passed by acompetent Court and that it is a valid and executable decree andthat the issue of jurisdiction and question of fact regarding theterms of contract cannot be urged before the Executing Court andthat the application is liable to be dismissed.

5. The learned IX Assistant Judge, City Civil Court, Chennai inthe order dated 11.11.2003 passed in E.A.No.4714 of 2003 inE.P.No.757 of 2003 in O.S.No.582 of 2002 has held that "a Court atVadodara has no jurisdiction to try this case and hence, the decreepassed without jurisdiction is nullity and void and unexecutable inthe Executing Court" and resultantly allowed the application indismissing the execution petition.

6. The learned counsel for the revision petitioner/ respondent/plaintiff/Decree Holder urges that the order dated 11.11.2003 passedby the learned IX Assistant Judge in E.A.No.4714 of 2003 inE.P.No.757 of 2003 in O.S.No.582 of 2002 (transmitted decree fromVadodara) is illegal in view of the fact that the Executing Courtcannot go behind the tenor of the decree and that the decree willbecome a nullity only if a decree was passed by a Court which lacksinherent jurisdiction and that the Vadodara Civil Court has inherentjurisdiction by means of pecuniary and cause of action.

7. It is further contended on behalf of the civil revisionpetitioner/DecreeHolder/plaintiff that the respondent/applicant/Judgment Debtor has failed to appear before the concerned Court whenCourt notice was served on it and having failed to raise hisobjections in the suit proceedings, it cannot take a plea before theExecuting Court.

8. On behalf of the civil revision petitioner/DecreeHolder/plaintiff reliance is placed on the decision AIR 2004 SC4377 (Balavant N.Viswamitra V. Yadav Sadashiv Mule) wherein it isobserved as follows:

"(A) Civil P.C. (5 of 1908), S.47, O.21, R.58 –Inexecutable decrees – Irregular or wrong decrees ororders – Are not necessarily null and void – Suit forpossession – Proceedings initiated against heirs ofdeceased tenant – Notice terminating tenancy sent toheirs and legal representatives of deceased by registeredpost which had come back – Notice under certificate ofposting did not come back – Notice was, affixed on suitpremises – From the record, it is also clear thatdefendants were aware of proceedings and they had engagedcounsel who was present when plaintiff was examined –Thereafter, with permission of Court, counsel withdrewhis appearance because he had no instructions in matterfrom defendants and a decree was passed – Decree havingbeen passed by competent Court having jurisdiction oversubject matter – Is not null and void – Cannot beobjected in execution proceedings."

9. He further cited (2004) 1 SCC 287 (Rafique Bibi V. SayedWaliuddin) wherein it is held as follows:

"B.Civil Procedure Code, 1908 – Ss. 47 and 33 – Decree –"Illegal decree" and "Null/Void decree" – Executability of– Difference in – Powers of executing court in this regard– Remedy in case of "nullity" – Held, if "nullity" ofdecree, for want of jurisdiction, is patent on face of thedecree then executing court may take cognizance of thenullity – Else normal rule that executing court cannot gobehind the decree prevails – Remedy in case of"illegality" – held, is to have it set aside in a dulyconstituted legal proceedings or by a superior court,failing which command of decree must be obeyed – Decreepassed by a court of competent jurisdiction cannot bedenuded of its efficacy by any collateral attack or inincidental proceedings – Rent Control and Eviction –Execution of eviction decree – Plea of nullity/illegality– Change in law during pendency of suit – Effect."

10. The learned counsel for the civil revision petitioner/DecreeHolder/plaintiff pressed into service the decision AIR 1999 SC 246(Bhawarlal Bhandari V. M/s.Universal H.M.L. Enterprises) wherein itis held thus:

"(A) Arbitration Act (10 of 1940), S.14- Award – Filingof – Award decree not shown to be passed withoutjurisdiction – Respondent judgment-debtor not filing objections – Award decree becoming final – Plea byjudgment-debtor in execution proceedings to ignore thedecree as being nullity – Not tenable."

11. The civil revision petitioner/Decree Holder/plaintiffearlier preferred C.R.P.(NPD).229 of 2004 before this Court and inC.M.P.No.1974 of 2004, this Court has passed orders on 12.02.2004directing the respondent/Judgment Debtor to deposit a sum ofRs.3,00,000/- to the credit of E.P.No.757 of 2003 on the file of IXAssistant City Civil Court, Chennai.

12. According to the learned counsel for the respondent/JudgmentDebtor/applicant, the Court at Vadodara has no jurisdiction to passa decree in the present case on account of conditions specified inthe purchase order dated 03.03.1999 made between the parties whichfixed the competent Court within the limits of Chennai and that theExecuting Court can hear objections that the decree is a nullity andthis can be decided under Section 47 of the Civil Procedure Code.

13. According to the learned counsel for the respondent/JudgmentDebtor/defendant, the admitted claim is only Rs.30,000/- and that inthe application to set aside the decree dated 31.12.2002 passed inO.S.No.582 of 2002 by the 3[rd] Joint Civil Judge (Sr.Div), Vadodara,the orders are awaited.

14. This Court has noticed the respective contentions of theparties.

15. In general, the Executing Court should not interfere withthe decree and execute the decree as its stands in the consideredopinion of this Court. As a matter of fact, the Executing Court cantake into consideration, the subsequent events as per decision(1999) 9 SCC page 198, 199. Moreover, no Executing Court can gobeyond the decree except where the decree is void ab initio orwithout jurisdiction.

16. In AIR 1976 KNT 56 it is observed that "the Executing Courtcannot challenge jurisdiction of Court which passed the decree".Admittedly, the respondent/Judgment Debtor/defendant has filed anapplication to set aside the decree at Vadodara before the concernedCourt and that orders are awaited thereto. Before passing of thedecree on 31.12.2002 in O.S.No.582 of 2002 on the file of 3[rd] JointCivil Judge, (Sr.Div), Vadodara, it appears that therespondent/Judgment Debtor/applicant has not raised the issue ofjurisdiction or lack of jurisdiction. Only after passing of thedecree dated 31.12.2002 in O.S.No.582 of 2002 the application to setaside the decree has been filed by the respondent/JudgmentDebtor/applicant. Inasmuch as the the orders are awaited from the concerned competent Court at Vadodara in the application filed bythe respondent/Judgment Debtor/applicant, taking note of the eventsand without expressing any opinion on the merits of the case, thisCourt is of the considered view that to promote substantial cause ofjustice and to prevent aberration of justice, the Executing Courtcan wait for four months as to the verdict in the said applicationby the concerned Court at Vadodara and till such time, this Courtopines no prejudice will be caused to either parties and in thatview of the matter, the civil revision petition is allowed.

17. In fine, the Civil Revision Petition is allowed. The orderpassed by the learned IX Assistant City Civil Court, Chennai dated11.11.2003 made in E.A.No.4714 of 2003 in E.P.No.757 of 2003 inO.S.No.582 of 2002 is set aside. The Executing Court is directed towait for four months as to the verdict in the application to setaside the exparte decree pending before the concerned competentCourt at Vadodara and till such time, this Court opines no prejudicewill be caused to either parties and thereafter, the Executing Courtshall proceed with the matter pending before it in the manner knownto law.

18. Considering the facts and circumstances of the case, theparties are directed to bear their respective costs. Consequently,connected miscellaneous petition is closed.

Sgl

Sd/-Asst. Registrar.

/true copy/

To

Sub Asst. Registrar.

1. The IX Asst. City Civil Court, Chennai.

2. The 3[rd] Joint Civil Judge (Sr.Div.)Vadodara, Gujarat

3. The Section Officer,VR. Section, High Court, Madras.1 cc to Mr.G.Sundaram, Advocate, SR.76141mrd (co)

dv/5.1.